IP implications for New Zealand’s General Election on 23 September 2017

Published on 20 Sep, 2017

New Zealanders head to the polls on 23 September 2017. IP is very seldom a kingmaker when it comes to choosing a Government and readers will be unsurprised to learn that it has registered barely a blip on the radar throughout the present campaign. Notwithstanding, this article briefly considers whether there is likely to be any change in New Zealand’s overall IP policy direction depending on whether Party A or Party B emerges victorious on Saturday.

The status quo

The governing National (centre-right) party has held the balance of power for the past decade, in a coalition-type arrangement with one or more minor parties. At the time of writing, the Labour (centre-left) party hold a slender lead in the polls. However, the gap, if realised on Election Day, would also require it to govern as part of a coalition. Coalitions mean compromise – and IP, in combining high importance with low profile, could be viewed as a “negotiable”.

A decade of centre-right; a decade of reforms

Over the past decade, New Zealand has reformed its patents legislation, progressed various Single Economic Market reforms with Australia (and withdrawn from others), acceded to the Nice Agreement concerning the International classification of goods and services, and been a driving force behind the on-again-off-again Trans Pacific Partnership negotiations as well as other bilateral FTAs (China, South Korea, Hong Kong, Taiwan). On the horizon is a potential FTA with the European Union – and with the TPP (or at least, United States participation in it) effectively now dead and buried, the stated goal of a US-NZ FTA.

Most of these reforms are apolitical

With few exceptions, most of the reforms listed above are apolitical in the sense that they would likely have eventuated irrespective of which party held the balance of power at the time. That said, some of the specific detail of the various reforms may have had a slightly partisan political flavour to it – for instance, the issue of software patents in the lead-up to the new Patents Act 2013. Originally, when the exposure draft of the new legislation was published (2004), the Labour-led coalition of the time proposed no software-specific restrictions as to whether it was patentable. However, by 2010, the National-led Government had purported to impose not only an “as such” restriction – but, further, to align more with the English courts (exemplified in the Aerotel decision) than with the European system. New Zealand’s change in position over these six years was largely due to a well-organised and appropriately-connected open source lobby – however, the change of Government and its amenability to such campaigning cannot be ruled out as a contributing factor.

Of course, none of this is to say that if Labour wins on Saturday, software patents will be back in vogue in New Zealand. Rather, as noted above, IP has barely registered a blip on the radar and as such, those hoping for further reform in the area of software patents may be in for a long wait.

Also, as a small country isolated by the tyranny of distance, New Zealand is unlikely (or would be unwise) to politicise any aspect of future FTAs – especially when it comes to the likes of the EU and US. Stated bluntly, New Zealand stands to gain significantly more than the EU or US from any such deal.

Conclusion

New Zealand’s General Election and IP? Not quite mutually exclusive – but in many ways, not far from it. We noted, during last year’s US Elections, the rare occasions where IP actually rated a mention (US participation in/withdrawal from the TPP being the main thrust) – however, in respect of this weekend’s New Zealand Elections, the silence has been deafening.

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